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Predevelopment Agreement City - BTC Mall Associates ... - Predevelopment...No. 044-4-004-000 which...
Transcript of Predevelopment Agreement City - BTC Mall Associates ... - Predevelopment...No. 044-4-004-000 which...
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Predevelopment Agreement
This Predevelopment Agreement (“Agreement”) is entered into as of ______________, 2016 by
and between the City of Burlington, a Vermont municipal corporation (the “City”) and BTC Mall
Associates LLC, a Delaware limited liability company (“Owner”). Each is referred to individually
as a “Party” and collectively as the “Parties.”
Background
A. Owner owns the real property numbered 49 Church Street, Burlington, Vermont, Parcel
No. 044-4-004-000 which is improved with a retail shopping mall known as “Burlington
Town Center”, and the real property numbered 75 Cherry Street, Burlington, Vermont,
Parcel No. 044-4-033-000, which is improved with a parking garage (together, the
“Property”).
B. The Burlington Town Center mall opened in 1976 under the name “Burlington Square
Mall” in conjunction with 1960s-era urban renewal development in the City of
Burlington. While the existing mall originally expanded the retail base of the City’s
downtown, for several years it has been a chronic underperformer economically. The site
is also a barrier to north-south connectivity, and has precluded the growth of a vibrant street
life on Bank Street and Cherry Street.
C. The City has undertaken a community planning process known as “planBTV – Downtown
& Waterfront Master Plan” (“PlanBTV”), which contemplates the redevelopment of the
Property in a manner that would utilize the Property more intensively in order to infill
downtown development and provide more active street-level uses, and which would
include a mix of affordable and market rate downtown housing, retail and services, and
would also restore and/or improve connectivity to the urban grid along Pine Street and St.
Paul Street.
D. Pursuant to a resolution adopted by the Burlington City Council on December 14, 2014,
the City has established the Development Agreement Public Advisory Committee to
oversee a public input process with respect to the proposed redevelopment of the Property,
and to work closely with technical consultants and Owner in connection with the
redevelopment of the Property.
E. Owner, either acting directly or through an affiliate, desires to redevelop the Property
substantially in a manner that aligns with the vision set forth in PlanBTV, as described and
depicted on the plans, drawings and other materials included within a 42 sheet plan set
entitled “Burlington City Center, Technical Review Set – Parking Above Grade” prepared
by PKSB Plus Architects and dated December 23, 2015, a copy of which is attached hereto
as Exhibit A and made a part hereof (the “Plan Set”), as revised by Concourse Level Plan
Sheet A-102 dated February 24, 2016, by Plaza Level Plan Sheet A-103 dated February
24, 2016, and by the height and massing reductions to the Cherry Street portion of the
Project shown on the drawing labeled “Alt Proposal”, copies of which are attached hereto
as Exhibit B and made a part hereof (the “Revised Plan Sheets”).
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F. Owner’s proposed redevelopment of the Property contemplates a two phase project
containing approximately the following features and characteristics (the “Project”) (all
numbers are approximations and the specified uses that are planned as of this time and set
forth below are subject to change and modification by agreement of the Parties as described
in more detail below):
Not more than 274 residential housing units (collectively measuring ±307,000 sq.
ft.), including a mix of unit sizes and including both market rate and affordable (i.e.,
inclusionary) housing units in compliance with the requirements of the City of
Burlington Comprehensive Development Ordinance (the “Zoning Ordinance”), as
it may be amended, and in compliance with the definition of a “priority housing
project” under 10 V.S.A. § 6001(35) (i.e., Act 250).
±17,700 sq. ft. of rooftop open space as a tenant amenity.
±340,000 sq. ft. of Class A commercial office space, with ±264,000 sq. ft. of such
space constructed as part of Phase 1 of the Project, and the ±76,000 sq. ft. balance
of such space constructed as part of Phase 2 of the Project.
±246,000 sq. ft. of first class retail space, designed to attract a mix of local, regional
and national retailers and restaurants.
±15,500 sq. ft. of indoor daycare space designed for an early childhood
development center tenant, together with ±15,000 sq. ft. of outdoor daycare space.
Owner shall provide a community space measuring at least ±5,000 sq. ft. for use by
community and/or civic groups during normal business hours and pursuant to rules
and regulations adopted and published by the Owner.
A ±925 space parking garage (measuring ±353,000 sq. ft.), including the provision
of covered bicycle parking facilities.
The re-establishment of St. Paul Street as a 60 foot wide through, public street
running between Bank Street and Cherry Street, featuring a high level of street
design including: wider sidewalks; street trees; premium pavers; street lighting;
storm water features, sub-surface utilities and infrastructure; and the creation of
multiple entry points into the retail and other spaces within the Property from the
street, all in accordance with plans and specifications to be agreed upon by the
Parties, and subject to the rights of third parties not affiliated with Owner or the
City, such as adjoining property owners. The Parties will cooperate in good faith
to resolve or eliminate any such third party rights to the Parties’ mutual satisfaction.
The re-establishment of Pine Street as a 60 foot wide through, public street running
between Bank Street and Cherry Street, subject to the existence of the building
numbered 100 Bank Street, featuring a high level of street design including: wider
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sidewalks; street trees; premium pavers; street lighting; storm water features, sub-
surface utilities and infrastructure; and the creation of multiple entry points into the
retail and other spaces within the Property from the street, all in accordance with
plans and specifications to be agreed upon by the Parties, and subject to the rights
of third parties not affiliated with Owner or the City, such as adjoining property
owners (the “Pine Street Connection”). The Parties will cooperate in good faith to
resolve or eliminate any such third party rights to the Parties’ mutual satisfaction.
The “activation” of Bank Street and of Cherry Street between St. Paul Street and
Pine Street, including (in both instances) a high level of street design including:
sidewalks within the public ROW (but wider than those currently in place); street
trees; premium pavers; street lighting; storm water features, sub-surface utilities
and infrastructure; and the creation of multiple entry points into the retail and other
spaces within the Property from those streets, all in accordance with plans and
specifications to be agreed upon by the Parties.
A rooftop observation deck made available to the public.
The re-establishment of St. Paul Street, the activation of Bank and Cherry Streets,
and the construction of the Pine Street Connection (all as more particularly
described above) are collectively referred to in this Agreement as the “Public
Improvements”, and the balance of the Project elements described in this
Agreement are referred to as the “Private Improvements”.
G. Owner and the City desire to enter into and memorialize certain agreements to reasonably
facilitate Owner’s construction of the Project substantially in accordance with the Project
schedule referenced below. The Parties contemplate entering into a Development
Agreement, consistent with the terms herein.
Now therefore, in consideration of the covenants, considerations and mutual benefits set forth
herein, and other good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the City and Owner agree as follows:
1. Phasing; Project Schedule; Market and Feasibility Study.
a. In an effort to mitigate and minimize both the construction time and the disruptions
associated with a large construction project—such as noise, traffic and general community
disruptions—the Project consists of two overall phases, referred to as Phase 1 and Phase 2. Phase
2 consists of the renovation of the existing retail space within the portion of the Property bounded
by Church, Cherry, Bank and St. Paul Streets, the renovation of the Church Street entrance to the
Property, and the construction of ±76,000 sq. ft. on such portion of the Property, contemplated to
be of Class A commercial office space. Phase 1 consists of the balance of the Project, including
all housing, parking, and Public Improvements. Owner desires to commence construction of the
Project on or before January 1, 2017. Nothing herein shall preclude Owner from revising Phase 1
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or 2 to add or modify uses of the Property in a manner consistent with the applicable zoning
ordinance then in effect.
b. Owner anticipates completing Phase 1 of the Project in sub-phases in accordance
with the Project Schedule attached hereto as Exhibit C and made a part hereof (the “Project
Schedule”). Each Party agrees to use best efforts to cause the Project to adhere to the Project
Schedule, with the understanding that each Party’s ability to timely perform under this Agreement
may be contingent on the other Party’s timely performance, or on timely performance by one or
more third parties (including, without limitation, independent political bodies of the City of
Burlington) over whom the Parties have no control.
c. Prior to August 1, 2016, Owner shall provide the City with copies of any market
studies and feasibility analyses (i) prepared by Owner or (ii) prepared for the benefit of Owner’s
Project lender(s) and/or investors and available to Owner. The Parties agree that such reports
customarily include data that analyze whether a market exists for the retail, commercial and
residential components of a project, and whether the anticipated market demand for the retail,
commercial and residential components of a project is sufficient to support the anticipated costs of
developing, constructing and operating it.
2. Sustainability; Additional Project Features; Design Modifications.
a. In addition to incorporating the Public Improvements and Private Improvements
substantially as described above, Owner agrees that the final plans and design for the Project will:
(i) accommodate and support alternative forms of transportation, including the use of bicycles, car-
sharing, mass transit and other progressive concepts; (ii) include the installation of rooftop solar
photovoltaic electric generation infrastructure subject to Owner’s receipt of regulatory approval
from the Vermont Public Service Board and to Owner’s entry into a reasonably acceptable
interconnection agreement with Burlington Electric Department; (iii) incorporate design and
building elements that would cause the Project to achieve at least LEED Gold certification, and
strive to achieve the energy reduction goals outlined in the “Architecture 2030 Challenge”; (iv)
incorporate City-approved public art installations that are reasonably satisfactory to the Owner;
and (v) incorporate accessibility features in accordance with applicable law.
b. Owner agrees that the Project shall include at least 270 residential housing units.
Owner intends to provide a mix of housing unit sizes, designs, and costs meant to attract a mix of
tenants as contemplated in PlanBTV. Owner intends to provide housing primarily as rental units
but may offer some units for sale. Owner agrees to provide the City with an opportunity to review
the unit design mix and the unit size mix for the residential component of the Project for conformity
with the goals of PlanBTV. Without limiting the foregoing, the Parties acknowledge that the
Owner has entered into a preliminary Letter of Intent with Champlain College to provide, through
a Master Lease, apartment units for the exclusive purpose of serving as student housing for its
students (hereinafter “Champlain Student Housing”). Owner agrees that the Champlain Student
Housing component of the Project will include not more than 110 units and shall either be managed
by Champlain College, or it shall be appropriately managed either by Owner (or its affiliate) or by
a property management company with experience and a proven track record managing student
housing. Other than the Champlain Student Housing referenced above, all other forms of purpose-
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built or master-leased student housing shall be subject to the review and approval of the Burlington
City Council. Nothing contained herein limits the availability of other housing units in the Project
for occupancy by individuals, including, without limitation, those who may be pursuing full or
part time higher education, seniors or work force members.
c. In addition to the affordable, or inclusionary, housing to be included as a component
of the Project (as described in the Background section to this Agreement), Owner shall endeavor
to develop some “workforce housing” as part of the residential component of the Project,
“workforce housing being that which targets households with incomes between 80% to 120% of
the median income for the Burlington/South Burlington MAS, adjusted for household size. The
City agrees to use its diligent, reasonable and good faith efforts to support Owner’s efforts to apply
for and obtain finance subsidies and Low Income Housing Tax Credits that are normally
available from either the State of Vermont or the U.S. government to qualified Vermont
development projects that include Affordable Housing and/or Work Force Housing, such as that
which this Project intends to offer.
d. Owner agrees to revise the Plan Set to be consistent with the Revised Plan Sheets,
and agrees that the plans submitted to support permit applications for the Project shall be consistent
with the revised Plan Set, subject to the other provisions of this Agreement.
e. Owner agrees to use reasonable efforts to utilize Burlington Telecom residential
and commercial services if such services are available to the Project on the time-line described
herein and such services are available on terms and conditions that are competitive with other
similar services on a commercial and residential basis.
f. The City acknowledges receipt and review of satisfactory three dimensional or
photo-realistic, simulated images and perspectives of the Project taken from various vantage points
in and around downtown Burlington to facilitate the City’s assessment and evaluation of the
Project height and massing that Owner has proposed, and the City reserves the right to further
review such materials and to reasonably request additional materials for further evaluation.
3. Municipal Zoning.
a. The Parties acknowledge that as presently designed, the Project could not be
approved under the terms of the Zoning Ordinance because, among other things, it exceeds
applicable height and setback limitations. In order to construct the Project, Owner will require an
amendment to the Zoning Ordinance to establish a new overlay district within that portion of the
City of Burlington that includes the Property, within which a Project that is consistent with the
Plan Set could be developed without exceeding applicable height, setback and other requirements.
b. Owner and the City agree that the present Project design, as reflected on Exhibits
A and B, needs further refinement to take into account the Parties’ concerns regarding certain
aesthetic aspects of the Project design, specifically including the uniformity of mass and of the
skyline, façade articulation and design, and the location and design of vertical step-backs, and that
Owner and the City are in the process of negotiating revisions to the Project design to address the
Parties’ concerns. The Parties acknowledge that the zoning amendment referenced above will
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include prescriptive design standards and requirements with regard to the uniformity of mass and
skyline, façade articulation and design, the location and design of vertical step-backs, and primary
and accent façade materials used in the Project. The Parties agree that the Project would conform
with the Zoning Ordinance if the Zoning Ordinance were amended substantially in accordance
with Exhibit D attached hereto and made a part hereof (the “Zoning Amendment Summary”) and
the Project design were modified to conform with the requirements of the Zoning Amendment
Summary. Notwithstanding the foregoing, the Parties agree that the Project design reflected on
Exhibit A as modified by Exhibit B is acceptable regarding the overall square footage and floor
area ratio (FAR) of the Project, and that the uses described on Exhibit D are acceptable.
c. The City shall support an amendment to the Zoning Ordinance which will permit
the lawful development and use of the Project, subject to standards and criteria to be developed in
consultation with Owner including, without limitation, the design criteria set forth in the Zoning
Amendment Summary. The City, acting through the Office of the Mayor, shall use diligent, good
faith efforts to (i) submit, or cause to be submitted, in writing to the City Planning Commission
such an amendment to the Zoning Ordinance within ten (10) days of execution of this Agreement
and (ii) obtain final legislative approval of such an amendment to the Zoning Ordinance within
one hundred and twenty (120) days following execution of this Agreement. The Parties agree
that if the City fails to amend the Zoning Ordinance on or before the one hundred twentieth
(120th) day following the date of the execution of this Agreement in a manner that will enable
the Project to obtain zoning approval, then Owner shall have the right, but not the obligation,
to terminate this Agreement.
d. The City, acting through the Office of the Mayor, shall use diligent, good faith
efforts to facilitate the adoption of an amendment to the Zoning Ordinance to facilitate the Project,
with the understanding that only the Burlington City Council and Planning Commission have the
authority to adopt amendments to the Zoning Ordinance, which must be adopted in accordance
with applicable laws, ordinances and regulations. Owner shall timely submit the materials and
submissions to the level of completeness necessary for the City to process an amendment to the
Zoning Ordinance so as to reasonably facilitate Owner’s adherence to the Project Schedule.
Without limiting the foregoing, the City agrees that so long as Owner timely submits the materials
and submissions necessary to process an amendment to the Zoning Ordinance, the City’s
administrative personnel shall use diligent, good faith efforts to process such submissions in a
timely manner so as to reasonably facilitate Owner’s adherence to the Project Schedule.
e. In consideration of the City’s agreement to undertake efforts to support and
facilitate such an amendment to the Zoning Ordinance, and in consideration of the funds expended
by the City in support of the Project, Owner shall, subject to the application of the reimbursement
provisions described in Section 4 of this Agreement, construct the Public Improvements as a
component of the Property in the first phase of its construction of the Project. Owner covenants
and agrees that prior to commencing the construction of any portion of the Project, it shall provide
the City with a copy of an executed construction contract that contains a guaranteed maximum
price to construct the Public Improvements, together with payment and performance bonds for the
City’s benefit issued by a solvent and reputable bonding company in the amount of such
guaranteed maximum price, consistent with the requirements of Section 3.2.10 of the Zoning
Ordinance or such other security reasonably acceptable to the City. Owner agrees that the City will
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not have an adequate remedy at law for Owner’s noncompliance with the provisions of this
paragraph and, therefore, the City shall have the right to equitable remedies, such as, without
limitation, injunctive relief and specific performance, to enforce the foregoing covenant and
agreement.
f. The Parties acknowledge that prior to constructing the Project, it will be necessary
for Owner to obtain permits and approvals for the Project from the Burlington Development
Review Board (“DRB”), that the DRB is an independent body not under the City’s control, and
that the City does not and cannot guaranty that the DRB will approve the Project even if the Zoning
Ordinance is amended. During that zoning amendment process, the Owner shall make its best
efforts to submit permit application materials at the earlier, legally permissible time to the level of
completeness necessary for the DRB and other Boards to consider Owner’s application for the
permits and approvals necessary to develop and construct the Project so as to reasonably facilitate
Owner’s adherence to the Project Schedule. The Parties agree that if Owner fails to obtain the
necessary permits and approvals to develop and construct the Project prior to October 15,
2016, or such later date as may be communicated to the City in writing by Owner, then all
of the Parties’ rights and obligations under this Agreement shall terminate.
4. Waterfront TIF District; Payment for Public Improvements.
a. Existing Legislation. The Property is situated within the City of Burlington’s
Waterfront Tax Increment Financing District (the “Waterfront TIF District”), within which the
City is authorized to invest public funds to construct or acquire infrastructure improvements that
facilitate private investment, all in accordance with applicable laws and regulations and following
approval by the Vermont Economic Progress Council, by the Burlington City Council and with
the support of the voters via a public referendum. If approved, municipal debt incurred within the
Waterfront TIF District is repaid using the incremental increase in property taxes generated by the
real property located within the District over the property taxes that were generated by the District
at the time that the District was first established, all as more particularly set forth and described in
the laws and regulations by which the District was established and is now governed.
b. Extension of Repayment Term. As of the date of this Agreement, the City is legally
permitted to incur debt within the Waterfront TIF District through December 31, 2019, and such
debt must be fully paid by December 31, 2025. Owner estimates that the hard and soft costs of
constructing the Public Improvements, plus the agreed-upon or appraised value of the real property
interest in St. Paul Street and Pine Street that Developer will convey to the City (as further
described in Section 4(e), shall not exceed a total cost to complete of $21,829,890.00, as outlined
with more particularity on Exhibit E attached hereto and made a part hereof (the “Not to Exceed
TIF Funding Amount”). As the Project moves through the design development process and more
detailed construction drawings are developed, the Parties shall refine the Not to Exceed TIF
Funding Amount to determine if the direct costs of the Public Improvements (and the Not to
Exceed TIF Funding Amount) should be adjusted prior to finalization.
The Parties acknowledge that the remaining available amortization period within the
Waterfront TIF District severely limits the City’s maximum investment in the Public
Improvements; however, if the expiration date for the Waterfront TIF District were extended until
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December 31, 2035, the City would anticipate being able to invest sufficient funds to construct
and acquire the Public Improvements so long as the debt is committed prior to December 31, 2019,
and the tax increment generated by the Property as improved by the Private Improvements would
be sufficient to service the debt incurred.
The City acknowledges that but for the City’s agreement to utilize the public financing
resources available through the Waterfront TIF District, the Public Improvements would not be
included as components of the Project or would have occurred in a significantly different and less
desirable manner. Accordingly, in order to facilitate the Owner’s construction of the Public
Improvements and the City’s payment for and acquisition of the Public Improvements, it will be
necessary for the Vermont Legislature to permit the parcels that contain the Project to allow for
full payment of TIF incurred debt by the end of 2035. The Parties agree to work cooperatively to
facilitate adoption of a state law achieving this outcome during the 2016 legislative session ending
in mid-May 2016, so as to reasonably facilitate Owner’s adherence to the Project Schedule, and
they further agree that if the Vermont Legislature fails to grant such extension, then all of
their rights and obligations under this Agreement shall terminate. Notwithstanding the
termination of this Agreement if the Vermont Legislature fails to grant such an extension,
termination of this Agreement shall not divest the Owner of any zoning rights or development
permits that Owner shall have obtained with respect to the Project or the Property.
c. Approval For Expenditure of Public Funds. If a law is enacted prior to July 1, 2016
that extends the expiration date for the portion of the Waterfront TIF District that includes the
Property until December 31, 2035, then Owner shall timely provide the City with the materials
and submissions to the level of completeness necessary for the City to seek approval from the
Vermont Economic Progress Council, from the Burlington City Council and from the voters to
expend funds from the Waterfront TIF District to pay for the Public Improvements, so as to
reasonably facilitate Owner’s adherence to the Project Schedule. The City agrees that so long as
Owner timely submits such materials and submissions, the City shall use diligent, good faith
efforts to process such submissions in a timely manner in an effort to reasonably facilitate Owner’s
adherence to the Project Schedule. The Parties agree that if the City fails to obtain the
necessary approvals to expend funds from the Waterfront TIF District to pay for the Public
Improvements, prior to November 15, 2016, then either Party shall have the right, but not
the obligation, to terminate this Agreement. Notwithstanding the right of the City to terminate
this Agreement if it fails to obtain the necessary approvals to expend funds from the Waterfront
TIF District as stated immediately above, termination of this Agreement shall not divest the Owner
of any zoning rights or development permits that Owner shall have obtained with respect to the
Project or the Property.
d. Payment for Public Improvements; Amount of Municipal Investment. Subject to
the contingencies set forth in this Agreement, Owner shall construct the Public Improvements in
accordance with mutually agreed upon plans and specifications and in accordance with the Project
Schedule. Owner shall initially construct the Public Improvements at its own cost and expense,
and the City shall reimburse Owner for the agreed-upon cost of constructing the Public
Improvements and the City shall acquire the real property interests in St. Paul Street and in Pine
Street that are a component of the Public Improvements for a price agreeable to the City and the
Owner or, at either Party’s election, for their appraised value, using an appraisal process agreed to
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by the Parties, upon Owner’s receipt of a Unified Certificate of Occupancy for Phase 1 of the
Project; provided however, that the City may partially reimburse Owner for such costs sooner upon
agreement. The City shall cooperate in good faith and take such steps as may be reasonably
necessary and appropriate to facilitate Owner’s receipt of a Unified Certificate of Occupancy for
Phase 1 of the Project prior to December, 31, 2019. The Parties acknowledge and agree that the
construction of the Public Improvements must be bid and accounted for separately from the Private
Improvements, and the City is only legally able to use Waterfront TIF District funds to pay for the
actual cost to construct the Public Improvements and to pay for the value of the real property
interests in St. Paul Street and Pine Street that Owner conveys to the City as a component of the
Public Improvements. In addition, as stated above, the amount of money that the City is able to
pay for the Public Improvements is limited by the obligation that the debt must be committed prior
to December 31, 2019 (meaning, that Owner must receive a Unified Certificate of Occupancy for
Phase 1 of the Project prior to such date unless the City agrees otherwise) and by the obligation
that the tax increment generated by the Private Improvements must be sufficient to service debt in
an amount equal to the payment made by the City to Owner. If the City finds it necessary to ensure
that the tax increment generated by the Private Improvements is sufficient, the Parties shall agree
upon the minimum assessed value of Phase 1 of the Project upon its completion, and Owner shall
agree not to appeal such assessment in an effort to reduce it below the agreed upon value. The
parties agree and acknowledge that the Owner may pledge any rights it has to reimbursement for
the agreed-upon cost of constructing the Public Improvements as collateral to its lender(s) or other
financing parties and the City shall execute documentation to evidence and agree to such collateral
assignment as may reasonably be requested by such lender(s) or other financing parties in
connection with such collateral assignment.
e. St. Paul Street and Pine Street. The Parties acknowledge that they have not yet
agreed upon the nature of the real property interests required in St. Paul Street and in Pine Street
that comprise elements of the Public Improvements and to be depicted on an amended Official
Map. The Parties agree to negotiate in good faith to reach an agreement regarding this issue prior
to determining the amount that the City will pay for the real property interests in St. Paul Street
and Pine Street. The City shall acquire the real property interests in St. Paul Street and in Pine
Street free and clear of all mortgages, security interests and liens and free and clear of all
encumbrances that would preclude or impair the use thereof as public streets. The Parties agree to
negotiate in good faith regarding certain matters concerning the transferred portions of St. Paul
Street and Pine Street, including (1) the Owner’s ability to erect signage on and about pedestrian
sidewalks; (2) the Owner’s ability to close the street on an expedited basis for events, fairs and
promotions upon reasonable notice to the City; (3) a prohibition on vehicular parking along the
transferred portions of St. Paul Street and Pine Street; (4) the Owner’s ability to relocate benches,
trash cans and other similar items located along the street, as needed, to accommodate such events;
and (5) the terms upon which Owner may reacquire the transferred portions of St. Paul Street
and/or Pine Street if it ceases to be used as a public, vehicular right-of-way.
f. Sales Tax Reallocation. The City agrees to use its diligent, reasonable and good
faith efforts to support Owner’s efforts to apply for and obtain sales tax
exemptions/refunds/abatements for items purchased during construction (Construction Sales Tax
Exemption) that are normally available from the State of Vermont to qualified Vermont
development projects such as the Project. Any reallocation of Project sales tax that is awarded by
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the State of Vermont shall be used by the Parties to pay for mutually agreed-upon expenditures
that support the Project.
5. Work Product; Project Modifications.
a. Owner acknowledges that the Project will have a major impact on downtown
Burlington, and that the City has a legitimate interest in ensuring that the Project is consistent with
the design principles adopted by Plan BTV, is consistent with best engineering practices, and that
it is likely to generate a sufficient tax increment to pay debt service on funds paid by the City
towards the Project using the borrowing capacity from the Waterfront TIF District. Accordingly,
as the Project is developed in more detail, Owner will consult with the City and will use good faith
efforts to provide the City with advance copies of all work product, including plans and drawings
(including, without limitation, civil engineering and architectural plans and drawings),
specifications (including, without limitation, with respect to exterior and interior finishes, fixtures
and materials), renderings, and other materials related to the Project and its design (“Work
Product”) prior to or, if necessary to meet a filing deadline, simultaneous with submitting such
Work Product for formal review to any other party. The City shall have five (5) business days to
provide reasonable objections to any such submissions in writing. In addition, Owner shall provide
the City with advance copies of any material modifications that Owner may make to any Work
Product (including, without limitation, the Plan Set) prior to, if necessary to meet a filing deadline,
or simultaneous with submitting such Work Product for formal review to any other party, and the
City shall have a five (5) business day opportunity to provide reasonable objections in writing.
In each instance, an objection shall not be reasonable if the proposal made by Owner is
consistent with the goals set forth in this Agreement and does not adversely affect the City’s
realization of its expectations under this Agreement. If the City provides Owner with any written
objections, Owner shall revise and modify its Work Product or modifications to the extent
necessary to satisfy such objections and shall thereafter resubmit the revised Work Product to the
City for further review in accordance with this Section. If the City does not make any objections
within the time periods provided for in this Agreement, then any such Work Product or
modifications shall be deemed approved and available for submission for formal review by any
other party. In addition, Owner may make non-material modifications to the Work Product from
time to time as final design, engineering and permitting of the Project proceeds, so long as such
modifications are consistent with the goals set forth in this Agreement and do not adversely affect
the City’s realization of its expectations under this Agreement,
6. Cooperation; Establishment of Labor and Community Workforce Agreements; Future
Negotiations; Further Assurances.
a. The Parties shall cooperate and communicate with each other on a regular basis,
including by arranging joint meetings with appropriate personnel present to address issues set forth
in this Agreement, to discuss any proposed changes to the Project and to discuss the Work Product
(as such term is defined in Section 5(a) of this Agreement) generated as the Project progresses, so
as to permit the orderly and efficient construction and development of the Project.
b. Owner and the City agree to the following:
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i. Owner will use reasonable efforts to provide jobs for qualified low and
moderate income Burlington residents to construct and operate the Project,
and will include in its general contract for the Project a requirement that the
labor employed to construct the Project shall be paid a “livable wage” as
that term is defined in the City of Burlington Livable Wage Ordinance as is
in effect on the date of this Agreement;
ii. Owner will use reasonable efforts to incorporate locally sourced materials
in the Project;
iii. With regard to the construction of the Private Improvements, Owner will
hire contractors and subcontractors who pay appropriate wages, properly
classify employees, obey labor laws, participate (where applicable) in
formal apprenticeship training programs, and provide employer funded
health and retirement benefits, with the understanding that it is the Parties’
intent that the foregoing shall not be understood to preclude the Owner from
engaging any qualified contractor or construction manager to construct the
Project; and
iv. Owner and the City will enter into a community benefits agreement to
memorialize, without limitation, the Owner’s agreement to participate in
City or City-affiliate sponsored job fairs, Owner’s agreement to distribute
and encourage the utilization of a list (provided by the City) of local vendors
for products and services to its general contractor and lessees, and Owner’s
agreement to solicit and review proposals from community job training
programs such as Youth Build Vermont and Vermont Works for Women to
construct portions of the Project.
c. In addition, the Parties agree to negotiate in good faith with regard to:
i. the temporary closure of public streets and sidewalks to facilitate
construction of the Project and other construction-related matters;
ii. the allocation of municipal personnel to the Project to streamline
construction inspections and permit reviews;
iii. the total amount of construction and permit fees that Owner will pay in
connection with the Project;
iv. the amount of property taxes payable by Owner with respect to the Property
during construction of the Project which will include demolition of existing
improvements, introducing uncertainty into future assessments;
v. entry into a parking agreement to accommodate existing monthly customers
of the parking garage on the Property after the closure and demolition of the
12 2016-04-20 - Predevelopment Agreement City - BTC Mall Associates.final
parking garage and prior to the completion of the new structured parking
that is a component of the Project;
vi. the availability of sales tax exemptions applicable to the Public
Improvements;
vii. the establishment of long term property rights upon the completion of
construction for the maintenance of private improvements on municipal
property;
viii. the entry into post-construction maintenance agreements with regard to the
Public Improvements;
ix. the entry into agreements with Burlington Electric Department regarding
the provision of electricity to the Property and the availability of net-
metering for the rooftop solar photovoltaic electric generation infrastructure
to be included as a component of the Project; and
x. the entry into agreements with Burlington Telecom regarding the provision
of internet connectivity and service to the Property.
d. With regard to the construction of the Public Improvements, the Owner shall hire
contractors and subcontractors who pay appropriate wages, properly classify employees, obey
labor laws, participate (where applicable) in formal apprenticeship training programs, and provide
employer funded health and retirement benefits, with the understanding that it is the Parties’ intent
that the foregoing shall not be understood to preclude the Owner from engaging any qualified
contractor or construction manager to construct the Project.
e. The Parties agree to execute, acknowledge, if necessary, and deliver such
documents, certificates or other instruments and take such other actions as may be reasonably
required from time to time to carry out the intents and purposes of this Agreement.
7. No Assignment; Financing Matters. This Agreement shall not be assigned by Owner
without the prior written consent of the City, which consent shall not be unreasonably withheld or
delayed so long as Donald F. Sinex holds and exercises executive managerial authority over the
assignee. Notwithstanding, the Owner shall be entitled to collaterally assign this Agreement, and
its rights hereunder, to any of its lender(s) and other financing parties without the City’s consent,
and such lender(s) and other financing parties shall have the right to assign this Agreement to a
successor developer in connection with their enforcement of their collateral rights in this
Agreement. The City shall execute documentation to evidence and agree to such collateral
assignment as may reasonably be requested by such lender(s) or other financing parties in
connection with such collateral assignment. The City acknowledges that Owner’s lender(s) and
other financing parties are likely to hold a mortgage of the Property and to hold other security
interests with respect to the Project and the Property, and the Parties agree that upon the City’s
reimbursement of the costs of constructing the Public Improvements and the City’s acquisition of
13 2016-04-20 - Predevelopment Agreement City - BTC Mall Associates.final
real property interests in St. Paul Street and Pine Street, such mortgage and other security interests
shall be released with respect thereto.
8. Governing Law; Venue. This Agreement shall be governed and construed in accordance
with the laws of the State of Vermont, without regard to its conflicts of law rules. The Parties
consent to and submit to in personam jurisdiction and venue in the State of Vermont, County of
Chittenden, and in the federal district courts which are located in the City of Burlington. The
Parties assert that they have purposefully availed themselves of the benefits of the laws of the State
of Vermont and waive any objection to in personam jurisdiction on the grounds of minimum
contacts, waive any objection to venue, and waive any plea of forum non conveniens. This consent
to and submission to jurisdiction is with regard to any action related to this Agreement, regardless
of whether the Parties’ actions took place in the State or elsewhere in the United States.
9. Severability. If any term, covenant or condition contained in this Agreement is held to be
invalid by any court of competent jurisdiction, such invalidity shall not affect any other term,
covenant or condition herein contained, provided that such invalidity does not materially prejudice
any Party in their respective rights and obligations contained in the valid terms, covenants or
conditions hereof, and the Parties shall cooperate to modify the Agreement to cause it to conform
to the original language of the Agreement to the extent consistent with the finding of the court.
10. Construction; Headings. The Parties waive the benefit of any rule that this Agreement is to
be construed against one Party or the other. The headings in this Agreement are for the purposes
of reference only and shall not limit or otherwise affect the meaning hereof.
11. Integration; Modification. This Agreement, together with the exhibits referenced herein
and/or attached hereto, constitutes the entire agreement between the Parties with respect to the
subject matter hereof and supersedes any prior agreements or representations, oral or written, on
the same subject. The Agreement can be modified only by written agreement executed by
authorized representatives of each Party.
12. No Partnership. The Parties do not intend by this Agreement to create, nor shall this
Agreement be deemed to create, a partnership or a joint venture among the Parties; each Party is
an independent actor and entity, and nothing in this Agreement shall be deemed to make either
Party an agent or partner of the other, or to give either Party the right to bind the other in any way,
notwithstanding any reference to the Project as a “public-private partnership.”
13. Force Majeure. If either Party shall be delayed, hindered in or prevented from the
performance of any act required hereunder, by reason of strikes, lock-outs, labor troubles, inability
to procure materials, failure of power, restrictive state or federal governmental laws or regulations,
riots, insurrection, war, terrorism, or other reason beyond its reasonable control (including the act,
failure to act or default of the other Party), then performance of such act shall be excused for the
period of the delay and the period for the performance of any such act shall be extended for a
period equivalent to the period of such delay, provided that no such event shall excuse a Party’s
failure to comply with any time period imposed by statute.
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14. Waiver. The failure of either Party to insist on strict performance of any of the provisions
of this Agreement or to exercise any right it grants will not be construed as a relinquishment of
any right or a waiver of any provision of this Agreement. No waiver of any provision or right shall
be valid unless it is in writing and signed by a duly authorized representative of the Party granting
the waiver.
15. Incorporation by Reference. The content of the Background section to this Agreement,
including without limitation the definitions set forth therein, and all exhibits hereto and the terms
contained therein and the contents thereof, are incorporated into this Agreement by reference.
16. Authority. Each of the Parties warrants to the other that the person or persons executing
this Agreement on behalf of such Party has the full right, power and authority to enter into and
execute this Agreement on such Party's behalf and to thereby bind the Party on whose behalf such
person, and that no consent from any other person or entity is necessary as a condition precedent
to the legal effect of this Agreement.
17. Notices. Any notices to be given pursuant to this Agreement shall be sufficient if given by
a writing: deposited in the United States mails, certified mail or registered mail, return receipt
requested, postage prepaid; by commercial courier, provided the courier's regular business is
delivery service and provided further that it guarantees delivery to the addressee by the end of the
next business day following the courier's receipt from the sender; by facsimile; or by email
(provided that the electronic process used is reasonably secure and not easily susceptible to
manipulation) addressed as follows:
If to the City: City of Burlington
149 Church St.
Burlington, VT 05401
Attention: Miro Weinberger
If to Owner: BTC Mall Associates LLC
101 Cherry Street, Suite 440
Burlington, Vermont, 05401
Attention: Donald Sinex
With a copy to: Brian Dunkiel, Esq.
Dunkiel Saunders
91 College Street, P.O. Box 545
Burlington, Vermont 05402-0545
or to such other person, address or number as the Party entitled to such notice or communication
shall have specified by notice to the other Party given in accordance with the provisions of this
Section. Any such notice or other communication shall be deemed given: (i) if mailed, three days
after being deposited in the mail, properly addressed and with postage prepaid; (ii) if sent by
courier, the next day after being deposited with the courier, properly addressed and with prepaid;
(iii) if sent by facsimile, when transmission has been electronically confirmed; and (iv) if sent by
email, when transmitted as long as the sender does not receive a delivery failure notification.
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18. Designated Representatives. Each party shall designate one or more representatives to
serve as the primary contact for communications relating to and issues arising under this
Agreement. In the event that either party changes its designated representative(s), it shall notify
the other party of the successor designated representative in accordance with Section 17.
Signature Page to Follow
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In Witness Whereof, this Agreement is executed by the duly authorized officers or representatives
of the Parties as of the date first set forth above.
City of Burlington BTC Mall Associates LLC
By: BDM Associates LLC, Its Manager
By: ___________________________ By:
Name: Miro Weinberger Name: Donald Sinex
Title: Mayor Title: Manager
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Exhibit A
42 sheet plan set entitled “Burlington City Center, Technical Review Set – Parking Above
Grade” prepared by PKSB Plus Architects and dated December 23, 2015.
Attached
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Exhibit B
Concourse Level Plan Sheet A-102 dated February 24, 2016, Plaza Level Plan Sheet A-103
dated February 24, 2016 and “Alt Proposal” Prepared with Respect to the Cherry Street
Portion of the Project.
Attached
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Exhibit C
Project Schedule
Phase 1 of the Project involves that portion of the Property bounded by Cherry Street and Bank
Street between St. Paul Street and Pine Street. Phase 1 is expected to commence in January 2017
with the demolition of all existing improvements located within such portion of the Property and
Phase 1 if started on January 1, 2017 will be substantially completed by August 2019, substantially
in accordance with the following schedule, subject to force majeure and other events outside the
control of the Owner:
Construction of the St. Paul Street roadway will be completed and placed in use by July
2018 (18 months after the commencement of construction).
Construction of the parking garage will be completed and placed in operation by July 2018
(18 months from the commencement of construction).
Construction of the retail space, including construction of the Pine Street Connection and
the activation of Bank and Cherry Streets, will be completed and placed in operation by
January 1, 2019 (24 months after the commencement of construction).
Construction of the office space will be completed and placed in operation by January 2019
(24 months from commencement of construction).
Construction of the residential space on Cherry Street will be completed and placed in
operation by August 2019, as described below (32 months from the commencement of
construction), but within such time frame the construction of the residential space on
Cherry Street will proceed in two (2) sub-phases in accordance with the following
schedule:
o The affordable residential units (meaning those that satisfy inclusionary
requirements under the Zoning Ordinance) will be completed and placed in
operation by March 2019 (27 months from the commencement of construction).
o The market-rate residential units will be completed and placed in operation by
August 2019 (32 months from the commencement of construction).
Construction of the residential units on Bank Street which sit atop the office tower at St.
Paul and Bank Streets will be completed and placed in operation by January 2019 (24
months from the commencement of construction).
Phase 2 of the Project involves that portion of the Property bounded by Cherry Street and Bank
Street between St. Paul Street and Church Street. Phase 2 consists of renovating the existing retail
space and adding 76,000 s.f. of office space above the retail space. Phase 2 will begin no later
than August 2019 and be substantially completed and placed in operation within 18 months after
the commencement of construction.
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Exhibit D
Zoning Amendment Summary
Attached
21 2016-04-20 - Predevelopment Agreement City - BTC Mall Associates.final
Exhibit E
Estimated Cost and Value of Public Improvements
Attached